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Arrest Discrimination and Conviction Discrimination: EEOC Increases Enforcement

Arrest Discrimination and Conviction Discrimination (together known as “criminal record discrimination”)  in New York City are on the rise and, at the federal level, the  U.S. Equal Employment Opportunity Commission (EEOC) is increasing resources to meet the challenge of bringing more lawsuits to oppose this trend.  On June 11, 2013, the EEOC filed two lawsuits alleging that blanket exclusion policies for those with prior convictions have had a “disparate impact” on certain protected classes of potential employees, African Americans in these cases.  Title VII of the Civil Rights Act of 1964 (Title VII) explicitly states that it is unlawful to refuse employment or discriminate against any individual because of race, color, religion, sex, or national origin.  Under Title VII, passing blanket policies which are not overtly discriminatory but which have a discriminatory impact – such as blanket policies prohibiting the hiring of applicants with felony convictions in their background, most of whom may be Hispanic or black – is illegal.

With respect to the new lawsuits, the EEOC filed suit against BMW (EEOC v. BMW Manufacturing Co., LLC) due to a background check policy which had a significantly larger impact on African Americans than it did on non-black employees. BMW had contracted with UTi Integrated Logistics to perform services for the company, but when the contract was terminated in 2008 over 600 UTi employees sought a transfer of employment to the new contractor. BMW ordered the new contractor to conduct background checks on all of the transferring UTi employees, even though some of these employees had already worked with BMW for many years without incident.  The EEOC discovered that 80% of African Americans failed this background check for previous convictions whereas only 20% of white employees failed. The EEOC believes that these statistics show discrimination against a particular racial group, and therefore support a violation of Title VII.

In the second lawsuit, Dollar General was sued (EEOC v. Dolgencorp LLC d/b/a Dollar General) because of a very similar background check policy which the EEOC also alleges is unlawful. Of the applicants who had been conditionally offered employment from 2004 to 2007, only 7% of white applicants were discharged for prior convictions while 10% of African American applicants were discharged for prior convictions. The EEOC has found these statistics to be “significant.”

In April of 2012, the EEOC issued the “Policy Guidance on the Consideration of Arrest Records in Employment Decisions under Title VII of the Civil Rights Act of 1964,” setting several key guidelines for employers, including that arrest records “alone cannot be used to routinely exclude persons from employment.”  In both cases, the EEOC argues that the employers did not assess the applicants individually in regard to their prior convictions.

According to the EEOC’s guidance, when considering arrest records or prior convictions in employment decisions, the employer must take into account:

  • Whether there is a “relationship of the charges to the position sought” in order to make a business case against hiring an individual;
  • The “likelihood that the applicant actually committed the conduct alleged in the charges”;
  • The “gravity of the offense”;
  • The “amount of time that has passed since the conviction”; and
  • That an arrest is not a conviction and more information must be found regarding the outcome of the arrest before excluding the potential employee from consideration.

If you have an arrest record or prior conviction, belong to a protected class, and believe that you have been unlawfully excluded from employment, immediately contact an attorney with expertise in fighting discrimination against protected class members.  Protections for these particular types of cases differ at the city, state and federal level – for instance, the New York State Human Rights Law and the New York City Human Rights Law recognize arrest discrimination and conviction discrimination as independent protected categories – so speaking with alawyer with experience in this area of the law is particularly important.

Christopher Davis is an experienced employment litigator specializing in class actions, overtime wage recovery, discrimination, whistleblower retaliation, and Wall Street bonus disputes. Before entering private practice, Mr. Davis served as an Assistant District Attorney in the Manhattan District Attorney's Office where he prosecuted violent crimes as a member of the Sex Crimes Unit.